Not all persons who work are employees (Eees) and a number of different parties may be involved in work contracts. It is necessary to consider the distinctions which exist between such parties and also understand the terminology used, as a party's status is likely to have implications with regard to his/her legal rights and duties.
- Employees: compare contracts of and for service (consider s230 ERA & s 295 TULR(C)A, plus a considerable amount of case law due to the unhelpful nature of legislation)
- Workers: refer to legislation such as s230 ERA & s296 TULR(C)A. In addition, case law of the ECJ interpreting Art 39EC (i.e. in relation to EC law rights only) is instructive. When comparing with the self-employed (S/E) Byrne Bros Ltd v Baird  ("perform personally ... work or services") and James v Redcats (ask whether the "dominant purpose" of the contractual relationship is the provision of personal services) are amongst a number of instructive cases. It is important to recognise that the term ‘worker' is much broader that of ‘employee' and consequently the terms should not normally be used interchangeably. “All Eees are workers but not all workers are Eees” (Broadbent v Crisp
- 'Special' categories: includes ‘office holders', Crown employees, armed forces, police, apprentices etc who may have employment rights which can be distinguished from employees generally
- A-typical' workers: include agency, casual and home-workers. Questions as to the employment status of such workers have acquired new significance in recent years as numbers of such workers have increased. (Consider cases such as Dacas v Brooks St Bureau , O'Kelly v THF , Nethermere (St. Neots) Ltd v Gardiner  and Carmichael v National Power plc  )
- Self-employed and contractors: A simple and straightforward example of the difference between Eees and S/E is the contrast between the jobs of chauffeur and taxi-driver referred to in Stephenson Jordan & Harrison Ltd v Macdonald and Evans . However, grey areas arise and it is not always clear whether a person is an employee. Byrne Bros Ltd v Baird  is also helpful
A. The Consequences Of Employment Status
Employment status will have an impact on a number of issues, including:
- NI and tax
- The extent of H&S rights/responsibilities
- Vicarious liability
- Rights in bankruptcy
- The availability of statutory rights/employment protection, as can be seen in the following chart:
B. Determining Status: Employees
The statutory definition of ‘employee' is of little practical help (compare contracts of/for service) and it has been left to the courts to determine on employment status. They have done so by developing a number of ‘tests', including:
The ‘modern' approach and issues held to be of particular significance include:
Mutuality Of Obligations
- Compare early cases such as O'Kelly v THF (1983), Nethermere (St Neots) v Taverna & Gardiner (1984)
- Carmichael v National Power plc [1999/2000]: Authority for the proposition that a contract of employment exists where there is (i) an obligation on an employer (ER) to provide work, if it is available and (ii) an obligation on the employee to undertake it if he is able, constitute the "irreducible minimum obligation necessary to create a contract of service"
- Express v Tanton : a basic and essential feature of a contract of employment is an obligation on the employee to provide his services personally
The Employment Label:
The relevance of an employment ‘label': rarely conclusive. Consider: Ferguson v Dawson, 1976, Massey v Crown Life Insurance (1978) and Young & Woods Ltd v West  (particularly para 30)
Consideration of status should not be a ‘mechanical exercise' Hall v Lorimer . Also compare New Testament Church v Stewart (2008) and MacDonald v Free Presbyterian Church (unreported)
Workers supplied by an agency may either simply be introduced by the agency to an employer who becomes their employer or alternatively they may work for the agency and be temporarily seconded or supplied to a "client employer". An agency worker whose contract is with an employment agency but who is supplied to work for a client of the agency may be an employee of either of them or of neither - he or she may simply not be an employee at all (Muschett v HM Prison Service, EAT, 2008).
Several cases since 2000 have suggested that the worker might well be an employee of the end-user client but other cases have made it clear that this is by no means automatic. In Consistent Group Ltd v Kalwak & ors (2007) it was held that a worker was an Eee of the employment agency which supplied him to an end-user client even though it was the end user rather than the agency who exercised control over the actual operation of his work (also consider Wood Group Engineering (North Sea) Ltd v Robertson, EAT 2007).
Legislative action: In 2006-7 the EAT called for Parliament to clarify the employment status of agency workers and in May 2008 BERR (BIS) announced an agreement between the government, the CBI and the TUC, whereby agency workers in the UK will receive "equal treatment" after 12 weeks' employment. In addition, a draft EC directive issued in March 2002 and amended by the European Parliament in November 2002 will if/when adopted ensure that temporary agency workers will generally be entitled to the same pay and other terms and conditions as those of comparable full time workers employed by the same employer
C. Who Is The Employer?
The ERA 1996 s.230(4) provides that 'employer' (ER) means the person by whom the employee or worker is employed. Again this definition is vague and often unhelpful.
- As already considered above, an agency worker whose contract is with an employment agency but who is supplied to work for a client of the agency may be an employee of either of them
- It can also be problematic in regard to Transfer of Undertakings, vicarious liability of ERs, payment of tax & NI etc
- Particular problems may also occur where Eees are ‘loaned out' or ‘outsourced' and are normally decided on the basis of who exerts ‘control' (Motorola v Davidson & Melville Craig Groups 2001)
- An instructive case in regard to sub-contractors is Biffa Waste Services v Maschinenfabrik (2008 EWCA Civ 1257 on 12.11.08)
Types Of Employment Contract
Contracts of employment may include:
- Full-time/ part-time: Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (applicable to ‘workers')
- Zero hours contracts/ flexible working arrangements: ss80F – 80I ERA (inserted by the Employment Act 2002)
- Indefinite term/ fixed-term: Fixed-Term Employees (Prevention of Less favourable Treatment) Regulations 2002
Appropriate chapter (s) in recommended textbook
Recommended/ Additional Reading:
Reading Recommended in the above textbook and/or
- M. Wynn & P. Leighton, Will the Real Employer Please Stand Up? Agencies, Client Companies and the Employment Status of the Temporary Agency Worker, ILJ 2006 35(301)
- S Deakin, Does the ‘Personal Employment Contract' Provide a Basis for the Reunification of Employment Law? ILJ, 2007 36(1): 68-83
- A.C.L Davies, The Contract for Intermittent Employment, ILJ 2007 31(1): 102-118
- Peter Talbot (Norton Rose), Agency Workers – Who is the Employer, www.mondaq.com (look also at related articles on this site for an up-to-date view)
- Kevin Barrow, Making Sense of the MSC regime, ELJ May 2007, (No 80): 12-15
- Gardiner, Status Unknown, 157 NLJ 210, Feb 2007
- Johnson, The Hybrid Class, 157 NLJ 728, May 2007
- Oxford Scholarship Online: Leaving Limbo? The Employment Status of Temporary Agency Workers, www.oxfordscholarship.com
The Contract Of Employment
Formation of the Contract, Sources of Contractual Terms, Express Terms, Statutory Statement of Employment, Implications of a Transfer of Undertakings
- Formation Of A Contract Of Employment
A contract of employment is normally subject to the usual rules of contract but, due to issues such as inequality of bargaining power and the often open-ended nature of the contract, certain contractual doctrines may be circumnavigated. A contact of employment may be formal (written) or informal (oral) and is normally a mixture of both.
- Sources Of Contractual Terms
Terms may become part of a contract of employment if introduced by:
- Agreement between the parties
may be by either express or implied agreement (i.e. where the agreement is implied by the courts). Collective agreements (involving agreement between ER and Eee organisations) and Work/Staff Rules (if properly incorporated) can come within this category
- Custom & practice now of little practical significance
- Implied by law:, where the term will normally be superimposed, by common law or legislation, into ALL contracts of the same nature.
Sources of express terms can include:
- Written contract
- Oral negotiations (e.g. at job interview)
- Other documents e.g. job advert (NB these cannot override conflicting, specifically agreed terms - Tayside RC v McIntosh, 1982)
- Work/staff rules e.g. booklets or notices issued by the ER, e.g. Peake v Automotive Products [1977/8]. Care must be taken to distinguish between those which are general statements of policy and those which are capable of forming part of the contract of employment (Briggs v ICI)
- Collective agreements: See separate note, below
- Statutory Statement of Employment/written statement of terms, if incorporated. See below
- Implied Agreement: On occasion the courts may be prepared to imply agreement between an ER and Eee via the officious bystander and/or business efficacy tests (Mears v Safecar Ltd, 1982)
Examples of express terms:
- Place of work and/or mobility: United Bank v Akhtar, 1989 (mobility clause)
- Restrictive covenants: an attempt by an ER to prevent or restrict competition by the Eee after employment has ceased Lansing Linde Ltd v Kerr 1991, Scully UK v Lee 1998, Kynixa Ltd v Hynes and Others (At paragraphs 130 - 141 of his judgment Wyn Williams J set out a detailed analysis of the law on restrictive covenants.)
Interpretation of expressly agreed terms:
Despite agreement, some agreed terms may still be ambiguous and will therefore need to be interpreted by the courts. Refer to your Contract Law notes for consideration of what the courts may take into consideration when doing this. Also consider Dunlop Tyres & Blows, 2001, (ambiguous wording in a contract will be construed in accordance with how the contract has been operated in regard to the matters covered by that wording over a period of time.)
Variation of Express Terms:
General contractual rule is that agreed terms of a contract may only be changed by agreement of both parties (may be a contractual term). Without agreement any change may be considered a breach of contract. .In some cases this can give the employee the right to resign and claim constructive dismissal (considered later)
Adverse (to the employee) changes in existing terms of employment are usually enforced in one of three ways:-
- by agreement with the employee(s), possibly with a cash "sweetener";
- by unilateral variation of contract terms; or
- by giving required notice to terminate existing contract and offering new a contract on new terms.
Choices open to an employee are:-
- acquiesce with the employer's proposals;
- reject them and resign, perhaps claiming constructive dismissal, or
- reject them but continue to work on a without prejudice basis (ie "under protest") on the new terms, reserving all rights, negotiating if possible and ultimately bringing court
proceedings if agreement cannot be reached.
It should be noted that even a clause agreed by an employee giving the employer the right to make unilateral changes to contract terms will not give the employer a total carte blanche. In Star Newspapers v Jordan EAT, 1993, unreported, EAT/344/93, it was said that a term in an employment contract giving the employer the right to make changes to the geographical area to which a commission earning employee is assigned is subject to an implied duty on the employer to take account of the financial impact of making such a change. Failure to do so can amount to a fundamental breach of contract entitling the employee to claim constructive dismissal.
Reality of situation is that employment contracts cannot remain static. Consider:
- Efficiency & financial expediency: Grix v Munford (unreported; prior consultation/alternatives/reasonableness), Farrant v Woodroffe School 1998
- Keeping ‘up-to-date': Creswell v Board of Inland Revenue 
- Incidental duties; Consider Lawes v London Electricity 
- A recent example of the possible consequences of an attempt to unilaterally vary employment terms can be viewed by visiting http://www.cpdwebinars.com/news.php
Enforcement of Express Contractual Terms:
It is recognised that not only do terms need to be lawful and reasonably to be enforceable but that they must also be applied reasonably: United Bank v Akhtar IRLR 
- An agreement between an ER, or ER's association, and a trade union (s 178 Trade Union & Labour relations (Consolidation) Act 1992)
- Problems may arise as to whether an association or trade union has the authority to enter into an agreement on behalf of an individual ER or Eee (Burton Group v Smith, 1977, Singh v British Steel, 1974) and also in relation to changing the terms of the agreement (Lee v GEC, 1963, Airlie v Edinburgh DC, 1996)
- Terms of such agreements will only bind the parties where the terms of the agreement have been expressly or impliedly incorporated into the contract of employment (Compare Robertson v British Gas, 1983, and Cadoux v Central Regional Council, 1986, & MacLea v Essex Line Ltd, 1983)
Written Statement Of Terms
Under s1 ERA, all Eees, employed for over 1 month, MUST be provided with a statutory statement within the first 2 months of their employment. The statement does NOT form part of the contract of employment (Lovett v Wigan MBC, 2001) UNLESS expressly included. It may be changed unilaterally by the ER, who must notify Eees of the change, in writing, within 1mth.
The contents of the statement are set out in s1 ERA.
iv. Impact of Transfer of Undertakings on Employment Terms
Common law prescribes that a contract of employment is a personal contract between ER & Eee and, consequently, when the ER's business is sold, the contract comes to an end (Nokes v Doncaster Amalgamated Collieries Ltd, 1940 / Bolwell v Redcliffe Homes Ltd, 1999). This position was, however, modified by the Transfer of Undertaking (Protection of Employment) Regulations 1981 (TUPE) which in April 2006 was replaced by the Transfer of Undertaking (Protection of Employment) Regulations 2006, and puts into effect the Acquired Rights Directive 1977 and the Acquired Rights Amendment Directive 1998.
TUPE applies if an undertaking or business is transferred to a new owner. The regulations provide that contracts of employment and employment rights of all employees engaged in the undertaking or business immediately before the transfer are automatically transferred to the new proprietor. The new proprietor automatically becomes employer of those employees on the same terms and conditions as before (subject to certain exceptions).
TUPE regulations also provide that dismissal of any employee for a reason connected with the transfer will automatically be unfair dismissal, subject to a special "economic, technical or organisational reason entailing changes in the workforce" exception. (It should be stressed that so far as employers are concerned the TUPE regulations are NOT voluntary. They apply automatically whenever the circumstances they envisage occur. However as the regulations are intended to benefit employees, it is of course possible, for individual employees to decide that they do not want to benefit from them.)
Relevant chapter(s) in your textbook
CIPD, Transfer of Undertakings (TUPE) at http://www.cipd.co.uk/subjects/emplaw/tupe/tupe.htm
For a detailed analysis of Restrictive Covenants, see paras 130 - 141 of the Judgement of Wyn Williams J, in Kynixa Ltd v Hynes & Others  EWHC 1495 (QB)
ACAS, Varying a Contract of Employment, www.acas.org.uk
David Israel (Wedlake Bell Solicitors), Lies, Damned Lies and CV's – Lying in a CV, www.mondaq.com
David Israel (Wedlake Bell Solicitors), White Lies – Honesty in Recruitment Advertising, www.mondaq.com
Common Law Rights & Duties
Common Law Rights & Duties, ERs & Eees
Common Law Rights & Duties
Certain terms are now routinely implied into contracts of employment by Common Law. Such terms can be divided into:
- those which provide an ERs' duties/rights and
- those which provide Eees' duties/rights.
There are many such terms and EXAMPLES of commonly implied terms are provided below
Employers' Duties include:
- provision of work:
The dicta of Asquith J in Collier v Sunday Referee Publishing Co (1940) is instructive on this point, as is Clayton v & Waller v Oliver . For a more up-to-date approach, consider William Hill v Tucker 
- provision of wages:
An Eee who is ready & willing to work must, subject to an express term to the contrary, be paid even if no work is available Beveridge v KLM Ltd (2000)
- indemnification of employees:
Re Famatina Development Corporation (1914)
This duty relates to the disclosure of confidential information relating to an E'ee - Dalgeish v Lothian and Boarders Police (1991). (Note: This area may now also come within the scope of the Data Protection Act, 1998 and other, related legislation.)
While there is no general duty to provide a reference, if a reference is provided, the ER has a duty to take care in its preparation Spring v Guardian Assurance plc (1994), Bartholomew v Hackney LBC (1999)
While it is necessary and reasonable for an ER to accumulate a certain amount personal information about their Eee's, rights relating to privacy have now, however, largely been subsumed into legislation such as the ECHR, HRA 1998 and Data Protection Acts
- mutual trust & confidence:
- Original position – ERs could hire and fire at will
- Modern position – consider the dicta of Lord Nicholls in Malik v BCCI (1995/7), University of Nottingham v Eyett (1999). (Also consider IOW Tourist Board case)
- health & safety:
Probably one of the most important c/law duties and, consequently, it will be considered in a little greater depth
While health & safety is now also a matter for legislation (Health & Safety at Work etc Act 1974+ a raft of secondary legislation intended to implement EC law), a general c/law duty in the tort of negligence exists. While legislation provides possible criminal sanctions against those who breach its terms, c/law rules allow parties to sue for damages in tort. This distinction is IMPORTANT.
The extent of the duty: The duty is a personal one and is illustrated in Wilson & Clyde Coal Ltd v English (1938) to include the provision of:
- Safe premises: Latimer v AEC (1953)
- Safe system of work: Cross v Highlands & Islands (2001)
- Safe colleagues: compare Hudson v Ridge Ltd (1957) & Horton v Taplin Ltd (2002)
- A perfectly safe environment is not what is guaranteed and the extent of the duty is what can be expected of a ‘reasonable and prudent employer', Paris v Stepney BC(1950), Darby v GKN (1986)
- The Eee is also expected to take responsibility of his own safety, as the relationship is not that equivalent to “nurse and imbecile child” Smith v Austin Lifts (1959). In regard to the provision of safety equipment, the ER's duty may be limited by the willingness of an Eee to use such equipment Cummings v William Arrol (1961), although the level/extent of the danger may impact on this Nolan v Dental Manufacturing (1958)
- The extent of the duty may be influenced by the vulnerability of the Eee, Paris v Stepney, James v Hepworth (1968)
- The extent of the ER's (reasonable) knowledge is also relevant: Stokes v Guest (1968), Keen & Nettlefold (1968)
- an ER's duty is not limited to the physical safety of Eees and it is now accepted that it also covers psychological harm: Consider Walker v Northumberland CC (1995) as a starting point
Also consider the important issue of VICARIOUS LIABILITY as illustrated in Lister v Romford Ice & Cold Storage Co, 1957
Employees' C/Law Duties include:
- obedience of lawful, contractual orders:
Laws v London Chronicle Ltd, Pepper v Webb (1969), Morrish v Henlys Ltd (1973), Creswell
- reasonable skill & care:
Janata Bank v Ahmed (1981)
- faithful service/mutual trust/confidential information:
Faccenda Chicken Ltd v Fowler (1985), Boston Deep Sea Fishing & Ice v Ansell (1988) (but note exceptions eg Public Interest Disclosure Act 1998/ ss 43A-43K, ERA, ‘Whistleblowers' Act, H&SAWAetc,)
IMPPORTANT NOTE: Remember that all terms must be reasonable and applied reasonably in order to be enforceable. (Akhtar)
Relevant Chapter(s) in textbook
Hatton v Sutherland – a stress free guide to stress at work claims? Andrew Hogarth, www.industriallawsociety.org.uk/papers/hogarth.htm
Liability for Psychiatric Injury – Can Employers Ignore the Warning Signs?,
Jennifer Armstrong (Bristows Solicitors) www.mondaq.com
Stress Claim Arising Out of Breach of Contract of Employment, Simon Cradick (Morgan Cole) www.mondaq.com
Stress and New Legislation, James Libson & Joanna Blackburn (Mishcon de Reya), www.mondaq.com
Thirty Years On and Looking Forward: The development and future of the health & safety system in GB, Health & Safety Executive http://www.hse.gov.uk/aboutus/reports/30years.pdf
Overview Of Statutory Terms
Statutory Implied Terms
Superimposed on all contracts of employment are a significant number of statutory implied terms, which created rights/duties in regard to the parties concerned. Examples of such statutory terns are considered in summary, below, for the sake of completeness. Implied terms relating to Dismissal & Discrimination are however, considered in greater detail later in the course.
Transfer Of Undertakings:
Refer to earlier lecture notes
Family- related rights: including
- Maternity & Paternity Rights:
In a study published by the EOC in 2005, it was estimated that 7 out of 10 pregnant women suffer some form of discrimination in employment - ranging from lack of ER knowledge of maternity rights to dismissal due to their pregnancy. It is consequently relevant to have a basic understanding of maternity rights including present maternity, paternity and adoptive parent rights.
Maternity rights: Employers and employees can agree by contract maternity rights which are more favourable (to the employee) than the current statutory minimum but any agreement by an employee to accept less favourable rights would be void (s 203 ERA 1996). Statutory maternity rights cover, in most basic general terms:-
- time off for ante-natal care
- maternity leave rights
- maternity pay rights
- protection from dismissal or detriment
- health and safety
- other general rights, such as rights under sex discrimination law
Paternity leave: An employee who satisfies certain conditions is entitled to take up to two consecutive weeks as paternity leave, which can be taken any time up to 8 weeks after the date of birth. (It is possible for a woman to be entitled to statutory Paternity leave)
Parental leave: Any employee who satisfies certain conditions and who "has, or expects to have responsibility, for a child" has a legally enforceable right to take up to 4 weeks unpaid parental leave per year while the child is under age 5, subject to an overall maximum of 13 weeks leave in respect of each child. (If disability living allowance is payable in respect of the child, rights are enhanced.)
- Dependent Care Leave:
- Ss. 57A-B ERA 1996 provides a right to reasonable unpaid time off work for employees to care for a dependant during working hours. There are only certain situations where leave is permitted:
- dependant is ill, gives birth, is injured/assaulted
- make arrangements for the care of an ill/injured dependant
- death of a dependant
- unexpected disruption to care arrangements for dependant
- deal with incident involving employee's child whilst at school
- Dependant is defined as the employee's spouse, child, parent or other person living in the same household except his employee, tenant, lodger or boarder. It may also include situations where the employee is the primary carer of a dependant not living in the same household. The employer may not re-arrange the employee's schedule to make up for lost time.
- Right to Request Flexible Working:
Under the governments ‘work-life balance' campaign, qualifying parents and carers now have the right to request flexible working.
Ss 80F – 80I ERA, together with the Flexible Working (Eligibility Complaints & Remedies) Regulations 2002 and the Flexible Working (Procedural Requirements)Regulations 2002, allow parents with at least 26 weeks continuous employment to request, in writing, that the terms of their contract be changed in regard to:
- hours of work
- times of work
- place of work
An ER can refuse such a request for the reasons set out in s80G(1)(b) ERA.
The Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2006 came into effect in April 2007. The Regulations extend the right to request flexible working to employees who:
- have been continuously employed for a period of not less than 26 weeks; and
- are or expect to be caring for a person in need of care who is either married to or the partner or civil partner of the employee; a relative of the employee; or living at the same address as the employee.
Rights In Relation To The Payment Of Wages
Legislation which related to the protection of wages has existed since the 1800's (Truck Act, 1831). Wage protect now exists in various guises, including:
Equal Pay Act:
Rights relating to equal pay for men and women are considered later in the course
Employment Rights Act:
- Ss8-10: right to receive an itemised pay statement
- Ss 13-15: no unauthorised deductions from wages. Consider:
What amounts to ‘wages'?: s27(2) ERA – a broad definition has been provided by both statute and the courts
What amounts to a ‘deduction'?: s 13(3) ERA - where the amount paid is less than the amount properly payable
When are deductions ‘authorised' deductions? S13 (1) & (2) ERA – deductions may be authorised by statute (e.g. income tax) or by the consent of the employee, provided it is made in writing and in advance of the deduction being made
Are there any exceptions to the general rule?
s14 & 16 ERA – overpayments, disciplinary procedures, statutory provision, to 3rd party at Eees request, industrial action, court order
ss17-18 ERA - special rules apply to those in retail employment
National Minimum Wage Act 1998: Applies to all ‘workers', making it a criminal offence for an ER to wilfully neglect to pay a worker at least the minimum wage and/or to fail to keep appropriate records.
Rights In Relation To Time Off Work Include:
- Family Rights - considered above
- Time off for public duties - s50 ERA
- Trade union duties - s61 ERA
- The Working Time Regulations 1998 set out:
(i) The average working time that protected ‘workers' (broader that Eees) may work per week (an average of 48, over a 17 week period, unless otherwise agreed)
(ii) Rest periods
(Iv) Annual leave entitlement
Health & Safety At Work Including:
An employer with 5 or more employees has an obligation to
- prepare and keep up to date a "written statement of his general policy with respect to health and safety at work of his employees ...... and to bring the statement and any revision of it to the notice of all his employees" (Health and Safety at Work etc Act 1974 s.2(3)).
All ERs, regardless of the number of Eees. are obliged to:
- display a Health and Safety Law poster or provide a leaflet outlining UK health and safety laws
- provide "... such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees" (Health and Safety at Work etc Act 1974 s.2(2)(c)).
- carry out a "risk assessment for the purpose of identifying the measures he needs to take to comply with ..... " the relevant statutory provisions (Management of Health and Safety at Work Regulations 1999)
- "establish and ..... give effect to appropriate procedures to be followed in the event of serious and imminent danger to persons at work in his undertaking", which would no doubt include fire, terrorist attacks and bomb threats ( Management of Health and Safety at Work Regulations 1999)
- carry out a risk assessment in respect of pregnant women and new mothers (Management of Health and Safety at Work Regulations 1999)
- report all work-related health and safety incidents specified in the (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995)
Every employee has a statutory duty to "take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work" (Health and Safety at Work etc Act 1974 s.7).
NOTE: Breach of these statutory duties is a criminal offence. Prosecutions for breach of the Act and/or regulations made under it can take place even if no harm has actually occurred (eg in 2005 B&Q were fined £4,500 and ordered to pay £25,000 costs when contractors were working on the roof of their Abergavenny store without protection to control falls HSE v B&Q Ltd and HSE v Gutterkleen Ltd).
The Public Interest Disclosure Act 1998 (commonly know as the Whistleblowing Act or "PIDA") contains the main provisions in relation to ‘whistleblowing'. However, the Employment Rights Act 1996 ss 43A to 43L also give legal protection to any worker against dismissal or other penalty as a result of his disclosing information relating to crimes, breaches of a legal obligation, miscarriages of justice, dangers to health and safety or the environment and to the concealing of evidence relating to any of these. (It should be noted that a number of Statutory Instruments also relate to Whistleblowing)
S 5 PIDA provided a new s.103A ERA 1996 making it automatically unfair dismissal if an Eee is dismissed for making a protected disclosure providing s/he acted in good faith and had reasonable grounds for believing that the information disclosed indicates the existence of one of the above ‘problems' (see e.g. ERA 1996 s.43G(1)).
Quite apart from the whistle-blowing provisions introduced by the PIDA employees are under an obligation to inform their employers of any work situation which is a serious and immediate danger to health and safety or which represents "a shortcoming in the employer's protection arrangements for health and safety" (Management of Health and Safety at Work Regulations 1999).
Employees who take or seek their statutory rights may be protected against detrimental treatment and/or dismissal connected with the exercise of such rights and may be deemed to be automatically unfair dismissal
Collective Employment Law
In UK law, collective employment rights (the bulk of which are far beyond the scope of this course and relates to Trade Unions and the right to take industrial action) are not usually legally enforceable except to the extent that a collective agreement is specifically incorporated (as discussed earlier) into an individual's personal contract with his employer. In UK law, the theory is that an employee and his employer make their own individual employment agreements with each other.
Most statute law relating to Trade Unions was consolidated into one Act in 1992, the Trade Union and Labour Relations (Consolidation) Act 1992. This was amended by TURERA 1993, while further substantial amendments were made by the Employment Relations Act 1999
Appropriate chapter(s) in either of the recommended textbooks.
CIPD provides a series of useful leaflets on a number of statutorily provided employment rights, which can be accessed by following appropriate links from www.cipd.co.uk
Alternatively, visit the BIS website.
Termination Of The Contract Of Employment
- Disciplinary & Grievance Procedures
Why Are Disciplinary And Grievance Procedures Necessary?
Disputes between ERs and Eees are inevitable and it is consequently important to ensure that they are resolved as quickly and effectively as possible. Specifically, disciplinary procedures are needed:
- So employees know what is expected of them in terms of standards of performance or conduct (and the likely consequences of continued failure to meet these standards).
- To try to resolve matters without recourse to an employment tribunal.
Grievance procedures are needed:
- To provide individuals with a course of action should they have a complaint which they are unable to resolve through regular communication with their line manager.
- To try to resolve matters without recourse to an employment tribunal.
The Development Of Disciplinary And Grievance Procedures:
- Original position: ERs could hire and fire at will, provided the contract of employment was not breached (action: wrongful dismissal). Provided very little protection for Eees
- Development of the law: introduction of actions for Unfair Dismissal and original ACAS Guidelines. Eees often still unsure of their rights
- STATUTORY dismissal, disciplinary & grievance procedures (Employment Act, 2002 and EA 2002 (Dispute Resolution) Regs 2004), in force until April 2009 aimed to reduce number of disputes before ETs by setting minimum requirements, as follows:
- ER to set out in writing Eees alleged misconduct
- Meeting should be arranged between parties
- Decision reached by ER must be conveyed to Eee
- Eee should have opportunity to appeal
Statutory grievance procedure:
- Eee must set out grievance in writing
- ER must organise meeting and inform Eee of outcome
- Eee may appeal ER decision
Failure to comply with statutory procedures:
- Failing party may be subject to financial penalties by ET
- Eee may be prevented from bringing a claim before ET
- ER may be liable for Unfair Dismissal
The Present Legal Position
The statutory procedures for handling discipline and grievance issues introduced in 2004 were widely criticised and were repealed from 6 April 2009 when the provisions of the Employment Act 2008 were implemented.
Other legislation may also be relevant to discipline and grievance issues. Examples include:
- The Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008
- The Employment Rights Act 1996
- The Employment Rights Dispute Resolution Act 1998
- The Employment Relations Act 1999
- The Employment Rights Act 2004.
- Until 6 April 2009 employers should have been following the statutory procedures and they continue to be significant in actions relating to disputes occurring before this date (Zimmer v Brezan, EAT)
- Behaving reasonably in handling disputes is crucial.
- The NEW ACAS Code of Practice are of extreme importance
ACAS Code Of Practice
- Does not apply to disputes relating to redundancies, non-renewal of fixed term contracts or collective grievances
- ETs will take the NEW code into account when considering relevant cases. Failure to the code follow does not create liability but may result in an award being adjusted, up or down, by up to 25% for unreasonable failure to comply
- Promotes informal resolution of disputes, including the use of mediation, prompt action, fairness and transparency
Using The Disciplinary Process
- Only when informal options have been exhausted and where there is no alternative should ERs enter a more formal disciplinary procedure.
- There are two main areas where a disciplinary system is particularly important: capability/performance and conduct
- If disciplinary action is to be taken, it should always include the following stages:
- Investigation: establishing the facts
- Letter: notifying the Eee
- Meeting: Eee may be accompanied (note the decision in Kulkarni v Milton Keynes Hospital NHS, 2009). Also consider non-attendance
- Notification of outcome
- Appeal: without unreasonable delay
- Potential outcomes
- No action
- Warnings (verbal (informal)/written (first/final). Employers should specify a ‘life' for formal disciplinary warnings after, which they will be disregarded for disciplinary purposes)
Using The Grievance Process
- Handling grievances informally
- Handling grievances formally:
- Deciding on appropriate action/communication of decision
NOTE: Contractual disciplinary/ grievance procedures should not be forgotten
Termination Of The Contract Of Employment
A contract of employment may be brought to an end in a number of ways, including:
- Agreement: As with any contract, an employment contract may be terminated with the consent of both parties
- Death, Dissolution, Liquidation of ER or Appointment of a Receiver (s 136, ERA, 96).
- Frustration: “An event or change of circumstances which is so fundamental as to be regarded by the law as striking to the root of the contract …..” Morgan v Manser, 1947
Frustration can only arise if there is no element of fault by one of the parties. In employment, consider the impact of;
- Long term sickness: Consider issues such as length of employment & absence, nature of work, need for replacement and prospects for return etc Egg Stores, 1976
- Imprisonment: Shepherd v Jerrom, 1985
- Resignation: Normally requires notice. Also consider what amounts to resignation Kwik-Fit v Lineham, 1992, Tanner v Kean, 1978, London Transport Executive v Clarke, 1980
- Dismissal: (s136 ERA, 1996). Consider:
(i) Must be communicated Brown v Southall & Knight, 1980
(ii) What may amount to a dismissal? Consider such issues as:
- Being given the opportunity to resign (Robertson v Securicor Transport, 1972)
- Unilateral imposition of radically changed term(s) of employment (Alcan v Yates, 1996)
- Ambiguity of language (Tanner v Kean)
- The ER's intention (Stern v Simpson, 1983)
- Expiration of a fixed term contact (s136 ERA'96 & Part-Time Employees Regs, 2002)
(iii) Dismissals with and without notice:
Employment contracts are contracts of continuous obligation and consequently, apart from certain exceptions, notice of termination must be given. Rights in relation to notice may derive from the contract of employment or from statute (ERA) and are considered in greater detail later in the course, under WRONGFUL DISMISSAL.
- Constructive Dismissal:
- Defined by ERA as a resignation due to unacceptable behaviour of ER
- Introduced in order to prevent ER from circumnavigating rules on unfair dismissal (considered later) and consequently relevant in regard to dismisal
- Consideration must be given as to whether ER's conduct amounts to a significant breach of contract*, entitling Eee to consider him/herself discharged from any further duty to perform the contract: Western Excavating v Sharp, 1978, Lewis v Motorworld, 1985, s136 ERA ‘96
- * includes a “last straw” constructive dismissal, as outlined in Wishaw & District DHA v Moncrieff, 2009
- 3 conditions must be satisfied:
- ER must be in actual or anticipatory breach of contract
- So as not to affirm the breach, Eee must resign within a ‘reasonable time' following the breach (WE Cox Turner v Crook, 1981). [Consider: what period may be considered reasonable in view of the rules on grievance procedures]
- Resignation must be due to the breach
- If an Eee is dismissed, there is a statutory presumption, in the absence of evidence to the contrary, that the Eee has been dismissed by reason of redundancy (s163 ERA)
- There are only 3 circumstances which amount to redundancy (refer to s139, ERA which lists)
- In a disputed redundancy the issues for consideration are (Murray v Foyle Meats, 1999):
- Has there been a dismissal?
- Is there a reduction in the need for particular work to be carried out?
- Is the dismissal at least mainly due to this situation?
- ERs must ensure that they adopt a fair procedure for the selection of those who are to be made redundant: (If such criteria cannot be demonstrated to be fair, claims for unfair dismissal may result)
- Identification of the ‘pool' of those at risk. Each case will revolve on its own (objectively justifiable)facts
- Selection of individuals from that pool. This can be by means of ‘LIFO' (Rolls Royce v Unite, 2009), a ‘points' system (criteria) or a ‘selection' system (application for remaining jobs)
- Individual Consultation: ERs have a duty to warn and meaningfully consult with Eees at a formative stage, including on how redundancies may be avoided (Mugford v Midland Bank, 1997)
- Collective Consultation: Where an ER proposes to make more than 20 Eees redundant, the ER will have a statutory obligation to consult with trade union representatives within a set timescale depending on the number of redundancies proposed (s 188 TULR(C)A, 1992) (collective employment law)
- ERs must offer suitable, alternative employment where such vacancies exist (S141 ERA, Taylor v Kent CC, 1969, John Fowler v Parkin, 1975)
- Certain selections for redundancy will be automatically unfair e.g. Trade union activities, pregnancy etc (s 153 TULR(C)A)
- Where an Eee is made redundant, provided s/he has sufficient continuity of service (2 years) statutory compensation will be payable. The amount payable will be based on weekly pay (presently capped at £380), length of service (capped at 20 yrs) and age. Eees may also have the right to contractual redundancy payments
- Change Of Employer:
- As considered previously, common law prescribes that a contract of employment is a personal contract between ER & Eee and, consequently, when the ER's business is sold, the contract is terminated.
- This position has, however, been modified by legislation, namely the Transfer of Undertaking (Protection of Employment) Regulations 1981 (TUPE) which, in April 2006, were replaced by the Transfer of Undertaking (Protection of Employment) Regulations 2006, which put into effect the Acquired Rights Directives and the Acquired Rights Amendment Directive, issued by the EC.
Continuity Of Employment & Termination (Ss 210 To 219, Era 1996)
In order to be eligible to bring a statutory claim for unfair dismissal or redundancy, an Eee may need to have a specific period of ‘continuous employment'.
- When calculating continuity, the following should be considered:
- commencement date
- effective date of termination (ss97 & 145, ERA. Also consider the recent cases of Gisda Cyf v Barratt, 2009, and Kirklees MC v Radecki, 2009))
- whether there has been any break in employment
- whether any adjustments need to be made
- s212(1) ERA sets out which weeks will count towards continuity. In general, these include any weeks where a contract of employment exists between ER (or associated ER) and Eee
- In addition, statute (s212(3) ERA) may protect continuity in certain circumstances, such as sickness, pregnancy and temporary cessation of work (Ford v Warwickshire CC, Berwick Fisheries v Rutherford) or, arguably, where there is an agreement between parties (London Probation Board v Kirkpatrick, 2005), Also where there has been a change of ER and TUPE applies (s218 ERA)
- Under s 216 ERA continuity is also protected during industrial action, although the strike period will not count towards continuity, as is normally the case in regard to weeks spent working abroad (s215 ERA), and military service (s217 ERA)
Relevant chapter (s) in recommended textbook
ACAS Code of Practice on Disciplinary and Grievance Procedures, available at
Herbertson & Davies (Dundas & Wison), Transitional Provisions of the Employment Act, 2008, available form www.Mondaq.com (13/02/2009)
The Gibbon Report (relates to 'failure' of statutory dispute procedures)
Hannah Ashton, Is There Any Life in LIFO?, available from www.mondaq.com (23/07/2009)
CIPD Factsheet on Redundancy, available from www.cipd.co.uk
Brown, Goulden & Amphlett (Finers Stephens Innocent), When Does a Dismissal Take Effect for Statutory Rights Purposes?, available at www.mondaq.com (18/08/2009)
Wrongful Dismissal, Unfair Dismissal
- Wrongful Dismissal
As has already been touched upon, employment contracts are contracts of continuous obligation and consequently, apart from in certain recognised exceptions, notice of termination must be given. Where an ER has failed to give an Eee any - or proper - notice, a claim for breach of contract (known as Wrongful Dismissal) may result. (Note that other situations may amount to Wrongful Dismissal, e.g. termination of a fixed term contract before it was due to expire.)
What Amounts To ‘Proper' Notice Of Termination?
- Under Statute: s 86 (1) ERA provides the minimum periods of notice that an ER is required to give an Eee (may be waived by Eee)
- Contractual Notice: where a contract of employment expressly sets out the period of notice due, provided that it is not less than the entitlement under statue, the contract must be complied with
- Implied Contractual Notice: where the contract of employment is silent, at common law reasonable notice must be given. What is reasonable will depend on circumstances e.g. the seniority of the Eee (Clark v Fahrenheit, 1999). Again it should not be less than that provided under statute
- Payment in Lieu of Notice: An ER may decide to make a payment in lieu of notice where: (i) the ER does not require the Eee to work during the (proper) notice period (ii) the contract of employment so provides (iii) both parties agree (iv) the ER has been summarily dismissed (see below) but the ER wishes to extinguish any possible claim by the Eee (Delaney v Staples, 1990)
An ER may be entitled to dismiss and Eee without notice (i.e. summarily) in response to a sufficiently serious breach of contract by the Eee. Such circumstances have been held to include:
- gross misconduct (Ross v Aquascutum, 1973)
- willful refusal to obey a reasonable, lawful order (Pepper v Webb, 1969)
- dishonesty (Sinclair v Neighbou, 1967)
It should be noted however, that summary dismissal can be justified only in ‘exceptional' circumstances (Jupiter general Insurance v Shroff, 1937)
- A claim for Wrongful Dismissal may be brought before an ET (within 3 mths) or as a C/Law action before the county/High Court (within 6 years)
- The usual remedy is that of a damages (for breach of contract), although an equitable remedy may be requested (e.g. injunction)
Note: an ER may also sue an Eee for failure to provide proper notice of resignation (minimum 1 week, s 86 ERA)
(2) Unfair Dismissal
Overview: Statute (ss 94 – 132 ERA 1996) provides certain Eees with protection from unfair dismissal. (Compare this to the ER's right to dismiss under C/Law.) The following issues will need to be considered in assessing an Eee's rights in such circumstances:
- Has the Eee been dismissed?
- Is the Eee eligible to make a claim?
- What was the reason for dismissal?
- Was the reason for dismissal a ‘potentially fair' reason?
- Was the dismissal ‘fair' in the circumstances? (Has the ER acted reasonably?)
- Was the dismissal procedurally fair?
- Is there potential to bring other claims?
- What remedies are available?
Each issue will be considered in turn:
- Has the Eee been dismissed? Refer to s 95 ERA and earlier notes on Termination
- Is the Eee eligible to bring a claim?
- Is the claimant an Eee? (s 94 ERA)
- Is the Eee in an excluded category of employment? (This category includes mariners, police officers, armed forces and, until the introduction of the Employment Equality (Age) Regulations, 2006, those over normal retirement age. Those working abroad may also be protected. )
- Does the Eee have the requisite period of continuous service? An Eee must normally have one year's continuous service (refer to earlier notes on Continuity) (s108 ERA). However, if the dismissal is connected to maternity or to the assertion of other legal rights, this requirement does not apply
- What was the reason for dismissal?
- Statement of reasons: An ER has an obligation to inform an Eee of the reason(s) for dismissal, in writing within 14 days, if the Eee so requests (s92 ERA), unless the dismissal occurs during pregnancy or maternity leave, in which case no request need be made.
- Automatically Unfair Reasons: Certain dismissals are automatically unfair. These include dismissals relating to maternity, parental leave, assertion of certain other statutory rights etc
- Was the reason for dismissal a potentially fair reason?
S98 ERA lays down 6 reasons for dismissal which are capable of being fair reasons (consider recent cases such as Brick Services v Thompson and East Lancs Coach Builders v Hilton, which are instructive in regard to how the courts may be prepared to ‘look behind' apparent reasons for dismissal and establish the 'real' reasons). Burden of proof is on the ER :
- Capability or Qualifications: including inherent inability (compare Taylor v Aldair, 1978 and Davidson v Kent Meters, 1975) neglect (consider relevance of warnings), ill health (compare Hart v A R Marshall, 1978 and International Sport v Thomson, 1980)
- Conduct: (i) inside employment, eg dishonesty or, in certain circumstances, (ii) outside employment – compare Bradshaw v Rugby Portland Cement, 1972 and Gardiner v Newport CBC, 1974)
- Redundancy: Refer to earlier notes on Redundancy. If the procedure followed or criteria applied appear to be unlawful then a claim for unfair dismissal rather than redundancy pay can be made.
- Statutory Illegality: Occurs where to continue to employ would be contrary to law eg Gills v Walls' Meat Co
- Retirement: s98(2)(ba) ERA & ss 98ZA to 98GBG ERA , ‘Heyday' Case
- Some Other Substantial Reason: examples include refusal to adapt (Creswell v Board of Inland Revenue, 1984), end of temporary employment (Terry v East Sussex CC, 1977) clash of personalities (Gorfin v Distressed Gentlefolk's Aid Assoc, 1973)
If the reason for dismissal given by the ER does NOT fall within one of the ‘potentially' fair reasons, the dismissal can be considered to be unfair at this stage.
- Was the dismissal fair in the circumstances?
- Once one of the above ‘potentially' fair reasons has been proven by the ER, it will then be necessary to consider whether the dismissal was fair in the circumstances - s98(4) ERA provides that enquiry should be made into whether the ER “acted reasonably”.
- The court's dicta in Iceland Frozen Foods v Jones, 1983, is instructive in explaining that an ER must have acted within the ‘band of reasonableness'. In effect, a tribunal a tribunal should ask “Could a reasonable employer have done what was done?” If the answer is “yes”, then the dismissal will be fair. (Note the impact of the Haddon, 1999 and Madden, 2000 cases). It is instructive to consider how the ‘band of reasonableness' has been applied in the cases referred to in iv, above. ET must avoid a ‘substitution mindset' London Ambulance Service NHS v Small, 2009)
- Issues which an ER may be expected to have taken into account when deciding to dismiss can include other action short of dismissal, consistency, length of service, previous work record etc.
Where an employee has been dismissed due to misconduct/dishonesty, the court in BHS v Burchell 1980, provided that the ER should:
have a genuine belief that the Eee was guilty of the misconduct
have reasonable grounds for that belief (West Coast Trains v Tombling, 2009), and
have carried out an investigation which was reasonable in the circumstances, before reaching any such decision (but consider the dicta of Lady Smith in Manor Oak v Kelly, 2009)
If the dismissal is not adjudged to have been fair in the circumstances, the dismissal can be considered to be unfair at this stage.
- Was the dismissal procedurally fair?
It is possible for an ER to dismiss an Eee for a fair reason but still lose a claim for Unfair Dismissal if the manner of the dismissal was unfair. There are a number of issues which have previously impacted on decisions relating to procedural fairness of any dismissal. These include:
Contractual/agreed disciplinary procedures
ACAS Code of Practice (persuasive rather than binding)
(Statutory) Dismissal and Disciplinary Procedures S98A ERA (refer to earlier notes for the updated position on procedures)
- Is there potential to bring other claims?
Consider the possibility of actions for wrongful dismissal, redundancy payment or under anti-discrimination legislation but note that an Eee cannot be compensated twice for the same loss
- What remedies are available?
- Reinstatement s114 & s116 ERA (Central & NW London NHS v Abimbola)
- Re-engagement s115 ERA
- Compensation (basic award /compensatory award) ss117-119 & s123 ERA (Eees are required to mitigate Roofdec v O'Keefe, 2008. Compensatory award may be reduced if claimant guilty of contributory misconduct Swallow Security v Millicent, 2009). Note that an ex-employee will be expected to mitigate his losses.
Relevant chapter (s) in recommended text
Age UK, R (on the application of) v Attorney General  EWHC 2336
Gilhooley, Disciplinary proceedings and criminal investigations, Times Higher Education, available at www.timeshighereducation.co.uk archive
Issues Of Discrimination
Introductory Issues: What is ‘discrimination'? Background to Discrimination in Employment and its Control
A. Introductory Issues:
- What is Discrimination?
- The word discrimination comes from the Latin "discriminare", which means to “distinguish between". Most broadly, discrimination is the ‘discernment of qualities' (often resulting in the rejection of those with ‘undesirable' qualities). Discriminating between people on the grounds of merit is generally lawful, while discrimination on other grounds (e.g. gender) is generally unlawful. (Consider why this should be?) This brings into consideration the basis on which we judge people (consider, for example, why we normally discriminate positively by rewarding academic ability, while gender can be a reason for negative discrimination, when both qualities are due to a genetic predisposition, rather than ‘fault').
- Egalitarianism (derived from the French word “égal”, meaning equal or level) is a political doctrine that promotes social equality, holding that ‘all people should be treated as equals from birth. (E.g. the quotation "All men are created equal" first used by Thomas Jefferson, in the American Declaration of Independence)
- Discrimination is often the result of stereotyping. (A stereotype was originally the name for a duplication made during the printing process; this led to its modern definition as a person or thing that is (or is assumed to be) the same as all others of its type.) Stereotypes are typically generalizations based on minimal or limited knowledge about a group to which the person doing the stereotyping does not belong. Persons may be grouped on the basis of gender, religion, sexual orientation, or any number of other categories. Sociologist Charles E. Hurst stated that “One reason for stereotypes is the lack of personal, concrete familiarity that individuals have with persons in other … groups. Lack of familiarity encourages the lumping together of unknown individuals”. It has been argued that stereotypes, by definition, are not accurate representations, but a projection of an individual's fears onto others, regardless of the reality of others. (Common stereotypical characters include the absent-minded professor, the nagging wife, the troublemaking teenager, and the kindhearted grandmother and are the basis for ‘positive discrimination'.)
- Something to think about: Is the opposite of discrimination equality of treatment or treatment as an equal? Consider how an ER should relate to a pregnant woman who absents herself from work. Should she be considered in the same light as a ‘sick' man who has been absent from work for a similar period or should the biological difference be acknowledged, allowing her to be treated differently?
- Background to Discrimination Law in the UK
- ‘First Generation' laws: Race Relations Act 1965, based on US laws, created the Race Relations Board (limited powers), response to widespread discrimination, focus on ‘different treatment'
- ‘Second Generation' (still largely in force): Sex Discrimination Act 1975, Race Relations Act 1976. Equal Opportunities Commission and Commission for Racial Equality created, with stronger powers than the old Board. ‘Indirect' discrimination also targeted
- ‘Third Generation': Disability Discrimination Act 1996, Race Relations (Amendment) Act 2000 - Focused on equality of opportunity & promote good relations. Equality Act 2006 created the Equality & Human Rights Commission
- European Influence: (Age, belief, sexual orientation etc) creation of a plethora of legislation described as a “nightmare of complexity”
- The Future: Equality Bill aims to simplify and bring all above under one act
- Discrimination in Employment
- The common law rule is that an ER is free to offer employment to whomever he chooses and on whatever terms are agreed (Allen v Flood & Taylor, 1898)
- This has now been modified by legislation in regard to:
- Sex - Marital status
- Gender reassignment - Sexual orientation
- Race - Religion or belief
- Disability - Age
- Rehabilitation of offenders - Part-time workers
- Fixed-term workers - Trade Union membership
- One of the main influences on the development of UK law in regard to anti-discrimination law has been the UK's member ship of the EC and this continues to be the case (e.g. from Art 157TFEU (Ex Art 141EC), in regard to equal pay, and the EU Equal Treatment Framework Directive 2000/78 in regard to age discrimination)
- Why is discrimination in employment generally prohibited?
“Discrimination on the basis of gender, race, culture or disability has a high profile. Much effort has gone into education, both in society in general and in the workplace about why any bias in these areas is not only morally wrong, but also why it makes poor business sense. By limiting recruitment or selection to a narrow ethnic or gender specific profile, an employer might easily miss the best person for the job in question. Therefore, laws ensuring equal rights for all citizens, also make economic [as well as moral?] sense.”
- Types of Discrimination
Legislation protects employees from discrimination of different types, namely:
- Direct discrimination occurs where an employer blatantly treats an employee less favourably because of, for example, their gender or race as illustrated by Batisha v Say, 1977
- Indirect discrimination occurs where a condition that disadvantages one group of people more than another is applied to a job. The US case of Griggs v Duke Power Co, 1971, explains ‘practices …. neutral on their face..'
- Harassment is behaving in an offensive manner, or encouraging or allowing other people to do so and may relate to bullying by an ER or a colleague (Protection from Harassment Act, 1997) and ERs have a duty to protect their Eees from such behaviour (EOC v Sec of State for trade & Industry, 2007)
- Victimisation is treating an Eee unfairly for making a complaint about discrimination (compare Aziz v Trinity Street Taxis, 1988 & Cornelius v University College Swansea,1987)
- Instruction to discriminate and discrimination by association can be demonstrated by Showboat Entertainment v Owens, 1984.
- Positive Action Discrimination, such as discussed in the dicta of the ECJ in Case C-409/95, Marschall
(v) The Institutions of Equality & Non-Discrimination
- The Equality and Human Rights Commission (EHRC) came into being on 1 October 2007. It combines the responsibilities and powers of the three previous equality commissions who had responsibility for promoting racial, disability and sex equality in Britain, namely:
- the Commission for Racial Equality (CRE),
- the Disability Rights Commission (DRC)
- the Equal Opportunities Commission (EOC),
The Human Rights Act
Finally, it is worth noting that The Human Rights Act, introduced in October 2000, adds protection, mainly for public sector workers. For public sector ERs, it's unlawful to violate Eees human rights under the Act, unless an Act of Parliament means they have no choice.
If an employer isn't a public authority, an Eee can't make a claim against their employer for breach of human rights. However, human rights law has been incorporated into general employment law (for example, not to be discriminated against because of an Eees sexuality) and this applies to all employers
Relevant chapter(s) in recommended text
EU Discrimination law, available at http://fds.oup.com/www.oup.co.uk/pdf/0-19-926683-2.pdf
Bullying in the Workplace, available at http://www.direct.gov.uk/en/Employment/ResolvingWorkplaceDisputes/DiscriminationAtWork/DG_10026670
CEHR: http://www.equalityhumanrights.com/ with further articles/reports are available at: http://www.equalityhumanrights.com/en/publicationsandresources/Pages/legacypublications.aspx
For details on the Equality Bill, including background and progress, visit the following sites: http://services.parliament.uk/bills/2009-10/equality.html and http://www.equalities.gov.uk/equality_bill.aspx and http://www.idea.gov.uk/idk/core/page.do?pageId=8890195
Introduction To Discrimination
- Why was equal pay legislation needed?
- Consider ‘women's work' and ‘men's work'
Where to find the law:
- UK legislation largely derives from EU law, namely Article 157TFEU (ex Art 141EC), the Equal Pay Directive (D75/117EC) & the Equal Treatment Directive (D76/207EC)
- Key UK legislation is contained in the EQUAL PAY ACT, 1970 (as amended)
Overview of Equal Pay:
- S1 EPA automatically implies an ‘equality clause' into all employment contracts
- A claim in regard to equal pay may be brought before an ET by either a woman or man
- The claimant must find an appropriate comparator, (i) of the opposite sex, (ii) working in the same employment, who is a (iii) contemporary, predecessor or successor
- There must be a difference in pay or less favourable contractual terms
- The claim must be brought on the basis of ‘like work' , ‘work rated equivalent' (graded the ‘same' by a job evaluation scheme) or ‘work of equal value' (since 1983, ensuring that the Equal Pay Directive has been properly implemented, consider Hayward v Cammell Laird, 1988 & Murphy v BT E, 1988)
- The claim will not succeed where an ER successfully demonstrates that the difference in pay/terms is due to a genuine material factor (GMF) unrelated to gender
Who is protected?
- Employees, regardless of length of service or hours worked
- Contractors who have a personal contract to undertake work (Quinnen v Howells, 1984)
- Agency workers, trainees etc (s16(a) EPA)
What constitutes ‘pay'?
- ‘Pay' has been interpreted widely (Barber v GRE, C-262/88 ) to include ‘the ordinary basic or minimum wage or salary and any other consideration, whether in cash or kind, which the worker receives, directly or indirectly…'
Who will be a suitable ‘comparator'?
- Must be actual, not hypothetical, and of the opposite sex s1 EPA
- It has been held (on the basis of Art 157TFEU, rather than the EPA) that an Eee can compare her/himself with a predecessor (Macarthy's v Smith, 1980)or a successor (Diocese of Hallam Trustee v Connaughton  )
- Must be in the ‘same' employment' as the claimant (s1 (6) EPA), meaning employed by the same ER or associated ER (ERs may be "associated" where one business is controlled by another, or where both ERs are companies controlled by a third), at the same establishment or service or at different establishments at which common terms and conditions apply s1 (6)(b)EPA (Whether the terms and conditions are "common" involves asking the extent to which each establishment acts autonomously in fixing terms). (Leverton v Clwyd CC.1989, N. Cumbria Acute Hospitals NHS Trust v Potter, 2008)
- Must be engaged in ‘like work', ‘work rated equivalent' or ‘work of equal value' (see below)
Comparing the two jobs:
- Like work: is their work of the same or broadly similar nature, where any difference is not of practical importance in relation to the terms and conditions of employment? (Compare Cooper Pass Ltd v Lawton, 1976 and Eaton Ltd v Nuttall, 1977. It is advisable to ‘read around' the case law on this area to gain greater understanding of the approach of the courts.)
- Work rated equivalent: relevant only where a Job Evaluation Study has been carried out. (The five main methods of job evaluation used in practice were set out by the EAT in an appendix to their judgment in Eaton Ltd v Nuttall  IRLR 71 EAT.)
- Work of equal value: S 1(2)(c) EPA provides that when a claimant seeks equal pay on grounds of equal value, a comparison should be made between the claimant's work and that of the named comparator 'under such headings as effort, skill and decision making'. The question of equal value is for the tribunal to determine (s.2A(1) EPA) and the case of Enderby v Frenchay HA, 1993, is instructive on the courts approach to this
Is there a defence to a claim for Equal Pay?
- The claim will not succeed where an ER successfully demonstrates that the difference in pay/terms is due to a genuine material factor unrelated to gender (s 1 (3) EPA)
- The burden is on the ER to make out the material factor defence. It is for the ER to identify the factor(s) upon which he intends to rely. The factor(s) may relate to the personal qualities of the individuals concerned (such as experience, qualifications, or skill) or, in the case of equal value claims, it may embrace extrinsic factors (such as market forces): Rainey v Greater Glasgow Health Board  IRLR 26 HL, Health & Safety Executive v Cadman
- If the defence is to succeed, the employer must prove that the factor:
- is 'material' ie that it is causally relevant and responsible for the difference in pay
- is 'genuine' ie that it truly explains the difference in pay
- is not tainted by direct discrimination (or it will fail)
- if tainted by indirect discrimination, it can be objectively justified
Enforcement & Remedies:
- Claims should be brought before an ET, normally within 3 mths (Consider grievance procedures and Equal Pay Questionnaires)
- Order declaring rights
- Increase in pay/improvement of contractual terms
- Compensation, consisting of arrears of pay (introduced by EU) and/or damages in relation to contractual term(s)
Relevant chapter(s) in recommended text
North Cumbria Acute Hospitals NHS Trust v Potter & ors EAT 2008-12-18 (discusses application of another ‘comparator' case, Robertson & ors v DEFRA  ICR 750. A reasoned overview of the case is available at http://www.thompsons.law.co.uk/ltext/lelr-weekly-104-source-employment.htm )
Wilson v Health & Safety Executive EAT 2008-12-19 (discusses the application of Health & Safety Executive v Cadman Case C-17/05). A reasoned overview of the case is available at http://www.personneltoday.com/articles/2009/11/04/52852/case-of-the-week-wilson-v-health-safety-executive.html
For statistics on the pay divide visit http://www.statistics.gov.uk
The TUC have developed an archive on Equal Pay and Gender Discrimination. It is available at: http://www.unionhistory.info/equalpay/roadtoequality.php